Bharat
Damodar Kale & Anr Vs. State of A.P
[2003] Insc 500 (8
October 2003)
N.Santosh
Hegde & B.P.Singh.
(Arising
out of SLP(Crl.)No. 2367 of 2003) SANTOSH HEGDE,J.
Heard
learned counsel for the parties.
Leave
granted.
This
appeal is preferred against the judgment and order made by the High Court of
Judicature: Andhra Pradesh at Hyderabad on
18.2.2003 whereby the High Court dismissed the criminal petition filed by the
appellants under Section 482 of the Code of Criminal Procedure (the Code). The
prayer of the appellants in the said petition was to quash the criminal
proceedings initiated against them in CC No.201/2000 on the file of the II
Metropolitan Magistrate, Vijayawada.
The
challenge of the appellants before the High Court in the said petition was based
on the ground that the cognizance of the alleged offence taken by learned
Magistrate was barred by limitation under Section 469 of the Code. It was also
urged that the Magistrate could not have taken cognizance of the offence based
on a complaint made by Drug Inspector, Zone I, Vajayawada who was not one of
the authorised officers under the Notification issued by the Government of
Andhra Pradesh under the provisions of the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 [the Central Act of 1954].
The
High Court considering the said objections of the appellants rejected the same
holding that the Notification issued by the Government of A.P. based on which
the complainant Drug Inspector had initiated the complaint, is a notification
applicable to the entire State of A.P. and not confined only to the Telangana
area of the said State, therefore, the complainant was a competent person to
lodge the complaint. The High Court also accepted the argument advanced on
behalf of the prosecution that the offence having been detected on 5.3.1999 and
the complaint having been filed on 3.3.2000, the same was well within the
limitation prescribed under Section 469 of the Code. The High Court further
accepted the argument of the prosecution that assuming there was a delay, the
same is condonable under Section 473 of the Code because the said delay
occurred due to the time taken by the Government in granting sanction which was
excludable while computing the period of limitation.
Mr.
R.K. Anand, learned senior counsel appearing for the appellants, contended that
the High Court erred in coming to the conclusion that the Notification issued
by the Government of A.P. dated 16.9.1963 issued in G.O.M.S.No.2515 Health,
also applied to all Drug Inspectors in the State of A.P. According to him, that
Notification was applicable to the Drug Inspectors of Telangana area of the
State of A.P. only and the Drug Inspectors of Vijayawada
which is outside the Telangana area, could not have assumed the jurisdiction
flowing from the said Notification. Learned counsel further contended that the
High Court was in error in coming to the conclusion that the limitation
prescribed under the Code was applicable only for the filing of the complaint
and not for taking of the cognizance which according to learned counsel, is
opposed to the very language of Chapter XXXVI of the Code. He further submitted
that the court below was in error in coming to the alternate conclusion that on
the facts of this case the period of limitation, can be extended because said
time was taken in obtaining sanction from the Government. For this purpose, he
relied on a judgment of this Court in State of H.P. v. Tara Dutt & Anr.(2000 1 SCC 230).
Per
contra, Mr. G. Prabhakar, learned counsel appearing for the State of A.P. submitted that the High Court was justified in
coming to the conclusion that the Notification in question was applicable to
the whole of State of A.P. and not confined to the Telangana
area of the said State. He pointed out from the various paras of the said
Notification that this was a notification issued by the Government of A.P.to
comply with the requirement of the Central Act of 1954, and an inadvertent
reference to the Telangana area in the preliminary part of the notification
would not change the actual effect of the notification. Learned counsel also
submitted that the bar of limitation prescribed under Section 468 of the Code
is applicable only in regard to taking cognizance of offences in respect of
which complaints are filed after the expiry of limitation mentioned in Section
468 of the Code.The use of the words 'Bar of taking cognizance' is not with
reference to the act of the court in taking cognizance but is with reference to
taking cognizance of the case which is barred by limitation under the Act. In
support of this contention learned counsel relied upon a judgment of this Court
in Rashmi Kumar (Smt) v. Mahesh Kumar Bhada (1997 2 SCC 397).
We
have perused the notification of the Government of A.P. dated 16.9.1963 issued
under the Central Act of 1954.
As
held by the High Court, in our opinion too, the Notification in question is
issued in furtherance of the 1954 Act and on the directions issued by the
Government of India with a view to control the advertisements of drugs in
certain cases and to provide for matters connected with the Central Act of
1954. Paragraph 2 of the said Notification authorises the Officers of the Drugs
Control Adminsitation, Drugs Inspectors appointed under Section 21 of the Drugs
Act, 1940 and other officers mentioned therein to act under Section 8 of the
Central Act of 1954 to seize and detain any document, article or thing which
such officer has reason to believe to contain any advertisement which
contravenes the provisions of the Act. The said Notification also provides for
obtaining the necessary previous sanction under Section 14(1)(d) of the Act,
wherever necessary. These provisions of the Act, in our opinion, as also the
object of the Notification clearly indicate that the Government of A.P. has
issued this Notification empowering all its Drugs Inspectors appointed under
Section 21 of the Drugs Act to exercise the power under Section 8 of the
Central Act of 1954 for the purpose mentioned therein throughout the State of
A.P. and an inadvertent reference to the Telangana area in the preliminary part
of the said notification, in our opinion, would not in any manner restrict the
operation of this Notification in other parts of Andhra Pradesh. Even otherwise
there is no other indication or purpose reflected in the notification why the
State of A.P. would want to restrict the operation of the notification which is
in furtherance of a Central enactment only to Telangana area of A.P. State,
with no stretch of imagination we can conclude that the Government of A.P.intended
to confine the operation to Telangana area of A.P.State. We are also of the
opinion that giving a narrow interpretation confining the operation of the
Notification to a part of Andhra Pradesh would defeat the public purpose for
which this notification is issued, therefore, such argument which would not subserve
the public purpose in the interpretation of a notification, should be avoided,
hence, we are in agreement with the finding of the High Court that the
notification in question is applicable to the entire State of A.P. and the
complainant in this case had the necessary authority to seize and detain any
material which would indicate the commission of an offence under the Central
Act of 1954 as also to file a complaint as has been done in this case.
This takes
us to the next argument addressed on behalf of the appellants in this case that
is the bar of limitation. It is an undisputed fact that in this case the
detection of the offence was on 5.3.1999. The complaint in question was lodged
in the court on 3.3.2000 which is within the period of limitation of one year.
However, the Magistrate took cognizance of the offence on 25.3.2000. If the
statute has put the period of limitation on the court taking cognizance then in
this case the period of limitation being one year, the appellant is right in
contending that the bar of limitation applies because the cognizance was taken
on 25.3.2000 which is beyond the period of one year. The High Court accepted
the argument addressed on behalf of the State and observed that since the
complaint was filed within the period of one year of the detection of the
offence, it is within the period of limitation though it did not give reasons
for this finding and it also alternatively held that assuming that there was
some delay in taking cognizance, said delay is condonable under Section 473 of
the Code because the delay was caused in the process of obtaining sanction from
the concerned Government.
On
facts of this case and based on the arguments advanced before us we consider it
appropriate to decide the question whether the provisions of Chapter XXXVI of
the Code apply to delay in instituting the prosecution or to delay in taking
cognizance. As noted above according to learned counsel for the appellants the
limitation prescribed under the above Chapter applies to taking of cognizance
by the concerned court therefore even if a complaint is filed within the period
of limitation mentioned in the said Chapter of the Code, if the cognizance is
not taken within the period of limitation the same gets barred by limitation.
This argument seems to be inspired by the Chapter-Heading of Chapter XXXVI of
the Code which reads thus: "Limitation for taking cognizance of certain
offences". It is primarily based on the above language of the Heading of the
Chapter the argument is addressed on behalf of the appellants that the
limitation prescribed by the said Chapter applies to taking of cognizance and
not filing of complaint or initiation of the prosecution. We cannot accept such
argument because a cumulative reading of various provisions of the said Chapter
clearly indicates that the limitation prescribed therein is only for the filing
of the complaint or initiation of the prosecution and not for taking
cognizance. It of course prohibits the court from taking cognizance of an
offence where the complaint is filed before the court after the expiry of the
period mentioned in the said Chapter. This is clear from Section 469 of the
Code found in the said Chapter which specifically says that the period of limitation
in relation to an offence shall commence either from the date of the offence or
from the date when the offence is detected. Section 471 indicates while
computing the period of limitation, time taken during which the case was being
diligently prosecuted in another court or in appeal or in revision against the
offender should be excluded. The said Section also provides in the Explanation
that in computing the time required for obtaining the consent or sanction of
the Government or any other authority should be excluded. Similarly, the period
during which the court was closed will also have to be excluded. All these
provisions indicate that the court taking cognizance can take cognizance of an
offence the complaint of which is filed before it within the period of
limitation prescribed and if need be after excluding such time which is legally
excludable. This in our opinion clearly indicates that the limitation
prescribed is not for taking cognizance within the period of limitation, but
for taking cognizance of an offence in regard to which a complaint is filed or
prosecution is initiated beyond the period of limitation prescribed under the
Code. Apart from the statutory indication of this view of ours, we find support
for this view from the fact that taking of cognizance is an act of the court
over which the prosecuting agency or the complainant has no control.
Therefore
a complaint filed within the period of limitation under the Code cannot be made
infructuous by an act of court. The legal phrase "actus curiae neminem gravabit"
which means an act of the court shall prejudice no man, or by a delay on the
part of the court neither party should suffer, also supports the view that the
legislature could not have intended to put a period of limitation on the act of
the court of taking cognizance of an offence so as to defeat the case of the
complainant. This view of ours is also in conformity with the early decision of
this Court in the case of Rashmi Kumar (supra) If this interpretation of
Chapter XXXVI of the Code is to be applied to the facts of the case then we
notice that the offence was detected on 5.3.1999 and the complaint was filed
before the court on 3.3.2000 which was well within the period of limitation,
therefore, the fact that the court took cognizance of the offence only on
25.3.1999 about 25 days after it was filed, would not make the complaint barred
by limitation.
In
view of our above finding, we do not think it is necessary for us to go to the
next question argued on behalf of the appellants that the court below was in
error in invoking Section 473 of the Code for extending the period of
limitation nor is it necessary for us to discuss the case of Tara Dutt (supra)
relied on by the appellants.
For
the reasons stated above, this appeal fails and the same is hereby dismissed.
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